Secessionism and Separatism Monthly Series: "Democracy, Separatism and Secession” by Brian Girvin

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H-Nationalism is proud to publish here the fourth post of its “Secessionism and Separatism Monthly Series”, which looks at issues of fragmentation, sovereignty, and self-determination in a multi-disciplinary perspective. Today’s contribution, by Professor Brian Girvin (University of Glasgow), deals with the nexus between democracy, separatism and self-determination. Please feel free to participate in the discussion by commenting on the piece.

 

At first it seems reasonable to expect democracy to provide a solution to conflicts over self-determination, separatism and secession. Liberal democratic societies regularly resolve difficult issues (for example abortion, same sex marriage or drugs) by voting. Despite this, there are few examples where democratic norms are applied to issues involving separatism and secession.

The Constitution of St Kitts and Nevis does provide for the possibility that the island of Nevis could secede from the federation. Such a change requires a two thirds vote in the Nevis Assembly and a two third endorsement in a referendum of all eligible voters on Nevis. Furthermore, a new and detailed constitution for Nevis would have to be available at least six months in advance of the referendum, with clear guidelines explaining its implications for the seceding island. In turn, the referendum would be held before impartial international observers to insure even handedness.[1] A referendum was held in 1998. While a majority voted in favour of secession, the two thirds threshold was not met and the proposal did not succeed. This case may be exceptional, but the conditions employed for a referendum provides some important insights. Other examples include Western Australia in 1933, Iceland in 1944, and, among others, Scotland in 2014. The European Union in the Lisbon Treaty recognises that members have the right to secede, as the United Kingdom may well do later this year. 

The norms that guide contemporary states maintain principles established in a pre-nationalist and pre-democratic era and do not always meet the challenges of the twentieth and twenty-first centuries. Nationalism and democracy as major political movements have their origin in the Enlightenment, Liberalism, and the American and French revolutions. Both nationalism and democracy appeal to the people and reject the hierarchical structures and notions of sovereignty that characterised the pre-Enlightenment world. The people (the demos) are at the heart of both these political worldviews and they have come to dominate political narratives ever since. Paradoxically, nationalism is anti-Enlightenment in its origins but its use of democracy to make a nationalist case is particularly modern.

John Stuart Mill recognised this link in 1861 when he urged his readers to accept that there was a strong case for nations to govern themselves as independent entities if they so wished. He also argued that multinational states were difficult to govern democratically when there was no shared sense of nationality, an insight that has been highlighted by subsequent research. Most states are in fact multinational and not ‘nation-states’, and most have their origin in pre-democratic and pre-nationalist state building. One consequence of this is that democracy and nationalism can destabilise existing state institutions and the democratic process itself. If national unity does not exist, democracy is likely to fail or at the least will be used to aggregate votes in a zero-sum contest between nationalities for resources within the state.

Historically the right to national self-determination has not been recognised by states, whether they are imperial, authoritarian or democratic. The historic exception is Norway, which successfully negotiated its independence from Sweden in 1905. At a formal level, Sweden agreed to the secession, thus preserving the international consensus on secession and recognition. However, the Norwegian case was firmly based on the democratic wishes of the Norwegian population, a feature recognised by the Swedish state and public opinion.

The United Kingdom provides a further refinement of the historical evidence. Despite widespread support in Ireland for the repeal of the Union, the British state was prepared to use force to preserve its territorial integrity throughout the nineteenth century. However, the arrival of adult male democracy in the 1880s changed these political dynamics. Support for nationalism could now be measured in votes gained by nationalist parties. In Ireland a substantial majority supported the home rule party led by Parnell. The very principle of majority rule was put in question when democracy and nationalism were linked in a multinational state. Should a simple majority within the state be considered legitimate or should some consideration be given to national demands by sub-state nations? Within Britain this did not undermine majority rule as Scotland and Wales were part of a British-wide political system whose interests were represented in Westminster and whose complaints were addressed. In some respects (tenant rights) this was also the case in Ireland, but not in respect of constitutional issues such as home rule.

The Irish case was made on nationalist grounds, whereas Liberal support for the change was based on reformist assumptions. Despite working in the British parliament, the political culture of home rule Ireland can be characterised as a national democracy. Its main features were national unity in the face of the British state and Protestant Ireland. The party system was based on national unity and there was little political competition within the national community. In so far as Irish nationalists were loyal to the state, this loyalty was conditional on Britain recognising Ireland’s national interest. These characteristics created a political movement that the British state eventually recognised, yet the very success of Irish nationalism led to counter mobilisation within Ireland.

The most effective challenge to home rule came from the Ulster-Scots community concentrated in the north-east of Ireland. There is considerable debate about the national status of the Ulster-Scots, and Irish nationalists consider them to be a religious minority within the Irish nation. Yet there is a strong case for considering them to be a distinctive nationality within Ireland with their own history, culture, and traditions. Ulster-Scots can be considered ‘unionist-nationalists’ in much the same way as historian Graeme Morton has defined Scottish nationalism in the nineteenth century. For both these nationalities, the Union represented their identity as British and in the case of the Ulster-Scots separates them from Irish national identity. Ulster Unionist objections to home rule were ignored by Irish nationalists and the Liberal government. In response to a parliamentary majority in favour of home rule, Ulster Unionists organised armed resistance to defend their Britishness.[2]

The two nations in Ireland qualified their loyalty to the state on grounds of nationality, if the interests of the state were in conflict with the nation’s interest. Both were prepared to arm to defend their position and some Irish nationalists went to war in 1916 and again in 1919 to defend/promote the national interest. In both cases, the political leadership could demonstrate overwhelming democratic support from their nationality at successive elections. Even when defying a parliamentary majority, leaders could claim a democratic mandate from the nation. Elections also clarified which nation the people who lived in Ireland belonged to. To all intents and purposes Catholics voted for nationalist parties and Protestants voted for unionist ones. In contrast to competitive party systems, there are no floating voters or leakages from one nation to the other. These are ethnic voting patterns that can be clearly seen in elections for all of Ireland up to 1922 and for Northern Ireland ever since.

The other feature of the Irish case is that it is difficult for the state in a democracy to actively repress a secessionist movement when it receives overwhelming support for its case. Sinn Féin won the 1918 election in Ireland convincingly on a secessionist platform and declared unilateral independence based on that success. The state response was repression and the war of independence lasted over two years before the Irish Free State was established. What is telling is that it took these years before the British state was prepared to negotiate (but also for the Irish republican forces to be more realistic). Should the British state have negotiated with Sinn Féin in 1919 based on the clear mandate that it had received? In this case it did not and violence escalated. The resolution of the crisis in 1921/22 required compromises on both sides, though it is the British government policy that changes most dramatically.

Nor is the UK experience unique. Despite the dramatic changes in world politics since 1918, similar issues continue to impact individual states and regions. The number of states has increased significantly since 1945, yet the problems associated with multinational states and secession persist. Democracy has subverted the idea of territorial integrity and opened up the prospect of considerable instability around issues of sovereignty and statehood.

This raises a number of issues already touched on during this series. The first is whether the existence of a nation (however configured) overrides the democratic majority in a state? Does the nation have the right to unilaterally secede if a majority of its members vote in support of a party with a commitment to that aim? Tentative moves towards a more sophisticated understanding of the tension between nation and state have appeared in Canada, Belgium, and the UK. However, most democratic states continue to oppose secessionist demands on traditional grounds.

My contention is that arguments based on territorial integrity or the existence of a ‘nation-state’ do not adequately address the political challenge that nationalism and democracy pose. Historical and contemporary evidence suggests that secession and separatism remain central to modern politics and there is little evidence that their appeal will disappear. Nationalism has acquired political legitimacy, and when linked to democracy it provides the justification for secession or separatism. To ignore it is to ignore the main political reality of contemporary politics, though how to address it is a more difficult question.

Here I focus on liberal democratic states, not authoritarian ones. In contemporary politics the least satisfactory position is that adopted by the Spanish government. Its persistent opposition to a Catalan referendum is likely to bring about the very outcome that it does not want: a unilateral declaration of independence. This refusal to negotiate weakens the state’s legitimacy in Catalonia, as does the government’s insistence that all those living in Spain should have a right to vote on the question. There is room for discussion on this question, but the position taken by respective Spanish Prime Ministers has been obstructive rather than helpful.

A more useful approach is the one adopted by the United Kingdom in respect of Scotland and Northern Ireland. In effect the British government has accepted that if a region of the United Kingdom votes in a referendum to secede from the state, that wish will be respected and the decision will not be thwarted by the state. The UK at least acknowledges a rough equality of status between the state and the nation in respect of constitutional issues such as secession. This establishes a democratic basis for secession, even if David Cameron’s willingness to accept a simple majority outcome for a decision was mistaken.

Perhaps the most satisfactory solution, and the one in accord with democratic and liberal principles, would be to establish a constitutional right to secede. Such a constitutional right would establish the conditions under which a referendum could be held and would accept the outcome. The St Kitts and Nevis constitution offers one possible point of departure. A further refinement for Europe would require the promotion of a European Charter of National Rights, establishing a European Union wide framework for achieving political independence (though such a charter would not be limited to secession). The advantage of having both a constitutional right to secede and a European Charter is that they would establish agreed domestic and European level standards for addressing a conflict between state and nation.

The following points might be taken into consideration when either the charter or constitutional right is being considered:

  • There can be no absolute right to unilateral secession as some nationalists argue. The right is based on certain conditions being met, but, if these are met, then those seeking secession have a strong case for a referendum.
  • Secessionists would be obliged to negotiate, in good faith, the political context for the referendum and the treaties that would follow if victorious.
  • If the secessionists comply with the agreed rules for achieving this, then there can also be no absolute right to deny the right to secession on the part of the state.
  • If the state simply ignores the expressed wishes of the sub-state nationality, then the referendum process is triggered independent of the state’s wishes. 
  • There will need to be a process to establish who the people are in these circumstances and who can and cannot vote in the referendum. Additionally, the territory within which the vote takes place will have to be established and agreed by all participants (this prevents either side exaggerating the extent of their territory).
  • Historic territorial units are relatively easy to deal with but in other cases this will not be the case; this point is acute in the case of Ukraine and Crimea.  However, if a specific territory does vote to secede, a case could be made for redrawing the boundaries of the territory prior to independence. In the case of Scotland, some of the islands may wish to remain in the UK after independence and this would require serious consideration by both sides. More controversially, if say Dumfries and Galloway, which is contiguous with England, had a substantial majority against secession, the fact that this area has been in Scotland for a long time is not enough justification to prevent it remaining in the UK if that is the wish of the majority.
  • Specific trigger points need to be established and publicly recognised to initiate a process leading to secession. This might include an election victory for secessionists or a poll of all those who live in a territory to determine their views on the matter. However, an election victory would not in itself necessarily mandate a referendum on secession. Such a problem can be obviated by a constitutional right that specifies clearly what triggers the process: again consider St Kitts and Nevis. A constitution might also stipulate that once a referendum has occurred, a further referendum cannot take place for at least 10 or 15 years.
  • The referendum should be held under the authority of the EU or another international organisation mandated by the European Charter and agreed to by the state or the secessionists. A committee would be established to scrutinise the referendum process and establish ground rules that all participants follow. These would include spending limits, media access, and the wording of the referendum question itself.
  • Such ground rules might include thresholds to be met before independence can be recognised. Thus it might be realistic to demand a 65 per cent turnout and possibly a 60 per cent vote in favour of independence. An alternative might be to require a series of votes in which 50 per cent +1 would determine the outcome.
  • A non-binding vote might also be organised among the non-seceding territories of the state to indicate opinion there.
  • Once agreed, the negotiations on independence would include not only the state and the secessionists but also the EU and possibly representatives of the Council of Europe. The EU is a significant force in this process and it has an interest in representing the other member states who are not directly involved in the discussions. A constitution would be the main product of these discussion and amendments to the treaties of the EU and international treaties could be agreed in advance.
  • All parties would agree to a principle of secession within secession. It is crucial for the secessionists to agree to this, as secession is a major constitutional change and is unlikely to be reversed.
  • If the European Charter/Constitution is complied with, then the new state gains automatic entry to the EU and it does not have to re-apply. There may be transition issues but these do not seem to me to be particularly difficult.
  • There would be a final vote on the constitution of the new state and, if agreed, the state would be recognised by the other EU states and the international community.

There are grounds for debate about the detail of these suggestions, but what they try to do is establish a reasonable and transparent framework within which a secessionist debate can take place.

One important conclusion of this discussion is that loyalty to the state and its legitimacy is contingent in many cases where national loyalties are in question. The state no longer has the monopoly of legitimacy but has to share it with nations within a multinational framework. This does not mean that democracy makes secession inevitable in every case; far from it. What it does mean is that the existing state system has to take account of this feature in contemporary politics and address the democratic deficit that it creates. At the very least, there should be an upgrading of the status of nations within states and their formal recognition as political entities that have the right to self-determination.

 

[2] David Miller, Queen’s Rebels: Ulster Loyalism in Historical Context (Dublin, 1978) remains the best introduction to this complex question; Richard English and Graham Walker (Eds.) Unionism in Modern Ireland (Dublin 1996) brings a number of interesting perspectives to this question. 

Professor Grivin's discussion is both very enlightening and thought-provoking; I am grateful for both. Here I shall focus on the latter aspect only. I would like to start with distinguishing the issue of constitutionalization of secession from the issue of the right of individual nations "to override democratic majorities" in the states in which these nations currently reside. Constitutions - currently (I think) only the Ethiopian and St. Kitts and St. Nevis constitutions – provide procedures for secession of territories on the basis of the votes of their populations. As it is clear from Professor Grivin’s discussion of the latter, these two constitutions do not confer rights to nations. However, in democratic states constitutions are enacted through majoritarian procedures: so if a constitution legalizes secession, secession is then allowed or legalized through a majoritarian procedure within the host state itself. In such a case, a demand for secession does not (and does not need to) override the democratic majority within the state.

If there is no constitutional provision for secession, the secessionist demand is a demand to override the democratic majority of the host state: as long as the demand is met and secession is recognized by the central government or the authorities of the rump state, the secessionists do not need the democratic majority within the state from which they are seceding. By making the demand to secede, the secessionists are already rejecting the democratic majority of the host state as the overriding source of authority over the territory they claim.

Nationalism, as Professor Grivin explained, provides both a potential normative justification and a potential historical explanation for this rejection. I am here saying ‘potential’ because I am not sure how a right of a nation, within a state, overrides the state's democratic majority. The issue here is not that of devolved powers: a central parliament can and does legislate to transfer overriding decision making in a particular area to a regional parliament. But this provides the regional parliament, and not a nation, a set democratic procedure for overriding the legislation of the central government in certain areas.

The Scottish National Party became a significant mass political force in 1999 and in particular in 2007 when it formed the government in Scotland. The Scottish nation is, I believe, much older than that. How does the right of the Scottish nation to a state of its own justify the demand to override the democratic majority of the UK and secede from the UK, if the demand has been effectively made only two decades ago? Was the democratic majority procedure in the UK a legitimate way of making decisions e.g. about Scotland’s military and nuclear forces until 2007 but then it lost its legitimacy by the assertion of the right of the Scottish nation to a separate state? Or perhaps the UK democratic majority procedure was never really legitimate but most of the Scots had not grasped that until 2007? I do apologize if this looks an unhelpful and perhaps even ironic question. I just want to say that I do not find it helpful to frame political demands of this kind using the terminology of state legitimacy and national rights (which nationalist secessionists only find natural).

Let me come to the point: a demand for secession or independence is, in my view, a political demand, made at a particular, historical, moment, which does not call for its resolution to be made through a democratic majority within the state in which it is put forward. As Professor Keating pointed out, it is a negotiable political demand; the negotiations regarding this demand do not require a democratic majority within the state within which it is being made. This is what makes it significantly different from other political demands – and this is why it is sometimes difficult to negotiate. There are other difficulties attending this type of political demand some of which had already been explored in Professor Keating’s contribution.

Perhaps the course of the Norwegian-Swedish negotiations regarding the secession of Norway in 1905 may be illustrative here. It was the Swedish king who demanded the Norwegian plebiscite on independence (the Norwegian government then hastily organized one to meet his demand prior to the start of the negotiations on secession). The negotiations over the terms of this secession/dissolution were punctuated by sharp disagreements, by a brief breakdown as well as by the deployment of the armies of both countries near their common border. None of the issues causing disagreements related to democratic majorities either in the common state or in the two of its ‘parts’. Once the negotiations were concluded, the parliaments of Sweden and of Norway, separately, accepted the terms negotiated by their government’s representatives. The negotiations had from the very start abandoned the concept of a democratic majority within the common state (if, of course, such a concept was ever operative in the United Kingdoms of Sweden and Norway).